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H-2A rules change again for agricultural employers

by Joan Murphy | June 02, 2009
WASHINGTON -- The Bush administration's changes to the H-2A program that went into effect in January and may have made it easier to hire agricultural workers have been suspended, according to the Labor Department. Instead, employers are left with a mid-season rule change that is likely to make an already complex program even tougher to navigate this year.

The H-2A rule took effect Jan. 17, just days after the United Farm Workers union and other worker rights groups sued to stop the rule. Soon after Labor Secretary Hilda Solis was sworn in, she announced that the Department of Labor would suspend the Bush administration's December 2008 changes to the H-2A program for nine months.

In comments to the Department of Labor's proposal in March, produce groups warned that the rule change might lead to increased prices and reduced availability of fresh fruits, vegetables, dairy and other food products. The Labor Department received more than 800 comments on its plan to suspend the Bush administration H-2A rule.

The Obama administration announced May 29 that it was officially suspending the December 2008 rule because it realized that implementing the new rule "without further consideration of the relevant legal and economic concerns that have arisen since its publication was proving to be disruptive and confusing, not only to the department's administration of the H-2A program but also to state workforce agencies, agricultural employers and domestic and foreign workers, especially in light of the severe economic conditions facing the country."

But the ever-changing H-2A rules are likely to disrupt hiring, the National Council of Agricultural Employers said March 15. "Due to long lead times to process workers into the system and the extensive preparation, record- keeping and costs already incurred by employers, substantial numbers of applications and contracts for 2009 have already been completed based on the new rule," according to the comments filed by the council. "Growers will end up with unacceptable delays and gridlock for H-2A and H-2B employers for the majority of applications scheduled to be filed in April through June 2009 because of the suspension."

The Labor Department dismissed these concerns in the final rule. "Since most applications for this growing season have been filed or will have been filed before this final rule becomes effective, the department does not believe that the concerns about disruption for this season are a major concern," the department said in a May 29 Federal Register notice.

"It is disappointing that the DOL has chosen this path in light of the many constructive comments received opposing the suspension, and in light of the fact that economic conditions make the new [Adverse Effect Wage Rates] unrealistically high," said Frank Gasperini, executive vice president of the National Council of Agricultural Employers.

"Today's notification is the third modification of the H-2A program since December, and is contributing to increased confusion among program participants, Kam Quarles, vice president of government relations and legislative affairs for United Fresh Produce Association, wrote in a note to members.

Department of Labor officials said that in nine months they will decide whether to lift the suspension or write another regulation.